Civil Procedure Law Colloquium (Volume 10)

Author: Chen Guangzhong
Publisher:
Publish Date: 2005-07-01
Features: A heavy snow covers Beijing. In the cold weather, a new volume of Essays on the Theory of Procedure has been compiled. As an editor, seeing the carefully selected articles arranged in order, it feels like old friends and new acquaintances are gathered together to discuss academic issues in procedural law, bringing a warm sense of comfort to the heart. The Criminal Procedure volume includes 14 articles. These articles reflect the rational thinking of procedural law scholars on judicial reform, procedural theory, and systems from multiple perspectives. Many of the articles have novel themes and perspectives, offering great inspiration. This volume still maintains traditional sections such as theoretical research, practical research, evidence law research, and foreign law. In the theoretical research section, we have included Huang Songyou, Vice President of the Supreme People's Court, "Improving the Procedural System and Promoting Judicial Reform," which is an excerpt from his speech at the 2004 annual meeting of the Procedural Law Society. Huang has long been engaged in judicial adjudication and has deep thoughts on procedural systems and judicial reform. In the article, he proposes suggestions for improving China's, believing that "not only can be applied to light criminal cases with sentences of less than three years, but it can also be used for cases with longer sentences"; he suggests establishing a system where bail is the primary measure and detention is secondary for improving the detention system; he praises some countries for not stipulating trial deadlines in procedural law; and proposes establishing a pretrial system by learning from foreign experience. The article also proposes suggestions on witness testimony systems, evidence presentation systems, death penalty review systems, and trial supervision procedures. These views are worth attention from the legislative, judicial, and academic communities. The article "The Status and Value Orientation of the Macau Prosecutor's Office in Criminal Procedure" by Dr. He Chaoming, Chief Prosecutor of the Macau Special Administrative Region's Prosecutor's Office, was submitted at the International Conference on Criminal Procedure Challenges in the 21st Century held in Macau in December 2004. The author introduces the Macau prosecutorial system, the status and value orientation of prosecutorial power, and elaborates on his personal views, providing a good window for understanding Macau's relevant systems. The warrant system constitutes an important part of modern criminal procedure systems and is worth in-depth and systematic research. Song Shijie and Chen Zhimin's "On the Warrant System" has made a beneficial attempt in this regard. The article provides a detailed description of the procedures for applying for and issuing warrants, and its theoretical analysis is also quite reasonable. Wang Haiyan and Zhang Xiaoling's "On the Relevance Rule and Relevance Principle of Evidence" conduct an in-depth analysis of the relevance rule, a core evidence rule widely adopted in major countries around the world. Especially from a comparative law perspective, they distinguish between the relevance rule and the relevance principle, and ultimately propose unique insights on how China can establish its own relevance rule. In the practical research section, we have included a research report on criminal legal aid in various parts of Yunnan Province written by the Research Team of the Criminal Legal Aid Department of the Ministry of Justice Legal Aid Center. The research team conducted a 10-day investigation and study on criminal legal aid issues in Kunming, Xishuangbanna, Lijiang, and Dali Bai Autonomous Prefecture in Yunnan Province. This report is the result of that research and investigation. The report summarizes funding guarantees, the functional positioning of legal aid institutions, the handling volume of criminal cases, the implementation procedures of legal aid, the economic subsidies for legal aid lawyers, and the quality of defense. The provided data and typical cases are of great value, and the issues raised and suggestions made are worth attention. In this section, Nie Zhaowei's article discusses the conciliation system for parties in public prosecution cases according to the recently issued "Opinions on Several Issues of Applying the Law to Current Cases of Light Injury Crimes" by the Supreme People's Court of Zhejiang Province, proposing the establishment of a criminal conciliation system. The topic is relatively novel, but the article lacks direct discussion on how the principle of party autonomy can be applied in public prosecution cases and intentionally or unintentionally avoids certain content in the opinions that contradicts the current Criminal Procedure Law, which is a shortcoming of the article. In the evidence law research section, we have included "Facts and Truth in Procedural Proof" by Li Yuhua and "Preliminary Exploration of the Rule of Judicial Knowledge" by Zheng Weimi, both of which offer certain insights and are worth reading. The foreign law section includes three articles. Zhang Zhong's "Analyzing 'Double Jeopardy'—A Perspective on the Historical Evolution of the U.S. Rule Against Double Jeopardy" is a well-crafted piece. The article traces the history of the development of the double jeopardy system, with accurate data and well-reasoned arguments, making it a good paper for understanding the rule against double jeopardy. Huang Bin and Li Huidong's "The 1999 Access to Justice Act" reviews the reform of the British legal aid system and its implications, which has some reference value for the reform of the legal aid system in China. "Access to Justice" is becoming increasingly popular in the study of procedural law in China, but directly translating "access to" as "approach" may not be ideal, as "access to" also means "obtain." Zhang Shu's "Evolution and Analysis of the French Preliminary Examination System" provides a relatively clear overview of the development of the French preliminary examination system, analyzes the deep-seated reasons for its development, and examines the characteristics of modern criminal pretrial procedures in conjunction with the French preliminary examination system. In the doctoral dissertation highlights section, we have included Chen Yingxin's "Reflections on the Rationality of China's Criminal Procedure Law." Procedural philosophy is a major topic in procedural law, and this paper reflects on the issue of procedural philosophy, proposing several standards for the rationality of criminal procedure law. Based on this, it provides an in-depth and specific analysis of the rational and irrational aspects of the current criminal procedure law in China. The Civil Procedure and Administrative Procedure Law volume includes 12 academic papers. In the theoretical research section, Tong Zhaohong and Zhang Qingshan's "Bankruptcy and Enforcement: Functional Positioning and System Coordination" clarifies the functional positioning and coordination of these two debt realization mechanisms through system design, aiming to promote the construction of a social credit system and the stability of the market economy order. Regarding judicial clarification, people often associate it with civil law systems. Xie Wenzhe's article "Legislative Reforms and Inspiration of Judicial Clarification—A Study Centered on Germany and the United States" thoroughly argues the value of the clarification system for common law systems and constructs China's clarification system based on the relationship between party autonomy and judicial authority. Han Bo's "Resolving the Paradox: The Disclosure of Evidence System in Adversarial Proceedings" believes that the disclosure of evidence system itself contains elements that deconstruct the adversarial system, and to resolve this paradox, the author proposes unique insights from the perspective of legal culture, procedural improvement, and the redistribution of responsibilities among procedural subjects. In the legislative and practical research section, Liu Yaling's "Judicial ADR and the Construction of Non-Litigation Dispute Resolution Mechanisms in Chinese Courts" discusses the value of judicial ADR, which has been widely rising globally, for China's realization of diversified dispute resolution mechanisms. Feng Renqiang's "Interpretation and Reconstruction—Also on Improving the Civil Appeal Procedure" analyzes the theoretical disputes and conflicts of interest between procuratorial law in the current civil appeal system with a calm tone, and explores how to construct a civil appeal procedure with Chinese characteristics through system design. Xu Jijun's "Dynamic Changes in the Reform of Foreign Expert Witness Liability Systems and Their Implications for China" clarifies that China should establish and improve the liability mechanisms for expert witnesses and expert assistants under the principle of truthfulness. Arbitration is a form of fact and legal judgment different from litigation. Wang Zuxing's "Reflections on Several Issues in Improving China's Arbitration Evidence System—With Reference to the Civil Procedure Evidence System" examines the special formal and substantive rules of arbitration evidence from static and dynamic perspectives, and proposes ideas for improvement regarding the unclear legal positioning, incomplete provisions, lack of authorization for arbitration tribunals, and unclear allocation of the burden of proof in China's arbitration evidence system. Yu Haisheng's "Exploration of the Theory of Res judicata in Assignment Proceedings" makes a valuable exploration of this important basic theory in procedural law. In the foreign-related civil procedure section, we have included He Qisheng's "Domain Electronic Service and the Hague Service Convention," which, with detailed materials, shows the relevant legislation and judicial practices of domain electronic service in various countries, as well as the unremitting efforts of the Hague Conference on Private International Law, analyzing the feasibility of electronic service. In the foreign law section, Zhu Hongwen and Wang Jian's "The Application and Legal Practice of Expert Determination in Commercial Dispute Resolution in the United Kingdom" elaborates on this economical and efficient commercial dispute resolution method from several aspects, including judicial intervention, the execution of expert decisions, and the responsibility of experts, and discusses its rational application in China. In the administrative procedure law research section, Zhao Qinglin and Liu Yiqi's "Research on Administrative Contract Litigation—Also on the Modern Transformation of China's Administrative Procedure Law" argues that traditional administrative procedure law and the resolution of administrative contract disputes are not compatible, and that retaining the concept of administrative acts while constructing a separate administrative contract litigation mechanism in China, and structurally restructuring the current administrative procedure law system, is a feasible solution to this problem. In the doctoral dissertation highlights section, Xiong Yaomin's "Reform of China's Civil Procedure Preparation Procedure: Models and Analysis" defines the meaning of the preparation procedure in a rigorous manner and clarifies that the justification for the preparation procedure lies in the fairness of trial and the centralization of trial, while analyzing several reform attempts regarding the preparation procedure in China, proposing suggestions for constructing China's preparation procedure from the aspects of subjects, tasks, and positioning. A heavy snow covers Beijing. In the cold weather, a new volume of Essays on the Theory of Procedure has been compiled. As an editor, seeing the carefully selected articles arranged in order, it feels like old friends and new acquaintances are gathered together to discuss academic issues in procedural law, bringing a warm sense of comfort to the heart. The Criminal Procedure volume includes 14 articles. These articles reflect the rational thinking of procedural law scholars on judicial reform, procedural theory, and systems from multiple perspectives. Many of the articles have novel themes and perspectives, offering great inspiration. This volume still maintains traditional sections such as theoretical research, practical research, evidence law research, and foreign law. In the theoretical research section, we have included Huang Songyou, Vice President of the Supreme People's Court, "Improving the Procedural System and Promoting Judicial Reform," which is an excerpt from his speech at the 2004 annual meeting of the Procedural Law Society. Huang has long been engaged in judicial adjudication and has deep thoughts on procedural systems and judicial reform. In the article, he proposes suggestions for improving China's, believing that "not only can be applied to light criminal cases with sentences of less than three years, but it can also be used for cases with longer sentences"; he suggests establishing a system where bail is the primary measure and detention is secondary for improving the detention system; he praises some countries for not stipulating trial deadlines in procedural law; and proposes establishing a pretrial system by learning from foreign experience. The article also proposes suggestions on witness testimony systems, evidence presentation systems, death penalty review systems, and trial supervision procedures. These views are worth attention from the legislative, judicial, and academic communities. The article "The Status and Value Orientation of the Macau Prosecutor's Office in Criminal Procedure" by Dr. He Chaoming, Chief Prosecutor of the Macau Special Administrative Region's Prosecutor's Office, was submitted at the International Conference on Criminal Procedure Challenges in the 21st Century held in Macau in December 2004. The author introduces the Macau prosecutorial system, the status and value orientation of prosecutorial power, and elaborates on his personal views, providing a good window for understanding Macau's relevant systems. The warrant system constitutes an important part of modern criminal procedure systems and is worth in-depth and systematic research. Song Shijie and Chen Zhimin's "On the Warrant System" has made a beneficial attempt in this regard. The article provides a detailed description of the procedures for applying for and issuing warrants, and its theoretical analysis is also quite reasonable. Wang Haiyan and Zhang Xiaoling's "On the Relevance Rule and Relevance Principle of Evidence" conduct an in-depth analysis of the relevance rule, a core evidence rule widely adopted in major countries around the world. Especially from a comparative law perspective, they distinguish between the relevance rule and the relevance principle, and ultimately propose unique insights on how China can establish its own relevance rule. In the practical research section, we have included a research report on criminal legal aid in various parts of Yunnan Province written by the Research Team of the Criminal Legal Aid Department of the Ministry of Justice Legal Aid Center. The research team conducted a 10-day investigation and study on criminal legal aid issues in Kunming, Xishuangbanna, Lijiang, and Dali Bai Autonomous Prefecture in Yunnan Province. This report is the result of that research and investigation. The report summarizes funding guarantees, the functional positioning of legal aid institutions, the handling volume of criminal cases, the implementation procedures of legal aid, the economic subsidies for legal aid lawyers, and the quality of defense. The provided data and typical cases are of great value, and the issues raised and suggestions made are worth attention. In this section, Nie Zhaowei's article discusses the conciliation system for parties in public prosecution cases according to the recently issued "Opinions on Several Issues of Applying the Law to Current Cases of Light Injury Crimes" by the Supreme People's Court of Zhejiang Province, proposing the establishment of a criminal conciliation system. The topic is relatively novel, but the article lacks direct discussion on how the principle of party autonomy can be applied in public prosecution cases and intentionally or unintentionally avoids certain content in the opinions that contradicts the current Criminal Procedure Law, which is a shortcoming of the article. In the evidence law research section, we have included "Facts and Truth in Procedural Proof" by Li Yuhua and "Preliminary Exploration of the Rule of Judicial Knowledge" by Zheng Weimi, both of which offer certain insights and are worth reading. The foreign law section includes three articles. Zhang Zhong's "Analyzing 'Double Jeopardy'—A Perspective on the Historical Evolution of the U.S. Rule Against Double Jeopardy" is a well-crafted piece. The article traces the history of the development of the double jeopardy system, with accurate data and well-reasoned arguments, making it a good paper for understanding the rule against double jeopardy. Huang Bin and Li Huidong's "The 1999 Access to Justice Act" reviews the reform of the British legal aid system and its implications, which has some reference value for the reform of the legal aid system in China. "Access to Justice" is becoming increasingly popular in the study of procedural law in China, but directly translating "access to" as "approach" may not be ideal, as "access to" also means "obtain." Zhang Shu's "Evolution and Analysis of the French Preliminary Examination System" provides a relatively clear overview of the development of the French preliminary examination system, analyzes the deep-seated reasons for its development, and examines the characteristics of modern criminal pretrial procedures in conjunction with the French preliminary examination system. In the doctoral dissertation highlights section, we have included Chen Yingxin's "Reflections on the Rationality of China's Criminal Procedure Law." Procedural philosophy is a major topic in procedural law, and this paper reflects on the issue of procedural philosophy, proposing several standards for the rationality of criminal procedure law. Based on this, it provides an in-depth and specific analysis of the rational and irrational aspects of the current criminal procedure law in China. The Civil Procedure and Administrative Procedure Law volume includes 12 academic papers. In the theoretical research section, Tong Zhaohong and Zhang Qingshan's "Bankruptcy and Enforcement: Functional Positioning and System Coordination" clarifies the functional positioning and coordination of these two debt realization mechanisms through system design, aiming to promote the construction of a social credit system and the stability of the market economy order. Regarding judicial clarification, people often associate it with civil law systems. Xie Wenzhe's article "Legislative Reforms and Inspiration of Judicial Clarification—A Study Centered on Germany and the United States" thoroughly argues the value of the clarification system for common law systems and constructs China's clarification system based on the relationship between party autonomy and judicial authority. Han Bo's "Resolving the Paradox: The Disclosure of Evidence System in Adversarial Proceedings" believes that the disclosure of evidence system itself contains elements that deconstruct the adversarial system, and to resolve this paradox, the author proposes unique insights from the perspective of legal culture, procedural improvement, and the redistribution of responsibilities among procedural subjects. In the legislative and practical research section, Liu Yaling's "Judicial ADR and the Construction of Non-Litigation Dispute Resolution Mechanisms in Chinese Courts" discusses the value of judicial ADR, which has been widely rising globally, for China's realization of diversified dispute resolution mechanisms. Feng Renqiang's "Interpretation and Reconstruction—Also on Improving the Civil Appeal Procedure" analyzes the theoretical disputes and conflicts of interest between procuratorial law in the current civil appeal system with a calm tone, and explores how to construct a civil appeal procedure with Chinese characteristics through system design. Xu Jijun's "Dynamic Changes in the Reform of Foreign Expert Witness Liability Systems and Their Implications for China" clarifies that China should establish and improve the liability mechanisms for expert witnesses and expert assistants under the principle of truthfulness. Arbitration is a form of fact and legal judgment different from litigation. Wang Zuxing's "Reflections on Several Issues in Improving China's Arbitration Evidence System—With Reference to the Civil Procedure Evidence System" examines the special formal and substantive rules of arbitration evidence from static and dynamic perspectives, and proposes ideas for improvement regarding the unclear legal positioning, incomplete provisions, lack of authorization for arbitration tribunals, and unclear allocation of the burden of proof in China's arbitration evidence system. Yu Haisheng's "Exploration of the Theory of Res judicata in Assignment Proceedings" makes a valuable exploration of this important basic theory in procedural law. In the foreign-related civil procedure section, we have included He Qisheng's "Domain Electronic Service and the Hague Service Convention," which, with detailed materials, shows the relevant legislation and judicial practices of domain electronic service in various countries, as well as the unremitting efforts of the Hague Conference on Private International Law, analyzing the feasibility of electronic service. In the foreign law section, Zhu Hongwen and Wang Jian's "The Application and Legal Practice of Expert Determination in Commercial Dispute Resolution in the United Kingdom" elaborates on this economical and efficient commercial dispute resolution method from several aspects, including judicial intervention, the execution of expert decisions, and the responsibility of experts, and discusses its rational application in China. In the administrative procedure law research section, Zhao Qinglin and Liu Yiqi's "Research on Administrative Contract Litigation—Also on the Modern Transformation of China's Administrative Procedure Law" argues that traditional administrative procedure law and the resolution of administrative contract disputes are not compatible, and that retaining the concept of administrative acts while constructing a separate administrative contract litigation mechanism in China, and structurally restructuring the current administrative procedure law system, is a feasible solution to this problem. In the doctoral dissertation highlights section, Xiong Yaomin's "Reform of China's Civil Procedure Preparation Procedure: Models and Analysis" defines the meaning of the preparation procedure in a rigorous manner and clarifies that the justification for the preparation procedure lies in the fairness of trial and the centralization of trial, while analyzing several reform attempts regarding the preparation procedure in China, proposing suggestions for constructing China's preparation procedure from the aspects of subjects, tasks, and positioning.